Opinion
No. 5018.
May 31, 1960.
Expropriation action by town seeking to acquire tract of land to be used for construction of a protection levee. From adverse judgment of the Seventeenth Judicial District Court, Parish of Lafourche, P. Davis Martinez, J., the property owner appealed. The Court of Appeal, Ellis, J., held that town of Golden Meadow incorporated under provisions of Lawrason Act and its amendments had power to expropriate land located beyond corporate limits for construction of protection levee.
Judgment affirmed.
Deramee Deramee, Thibodaux, for appellant.
Archie D. Saint, Thibodaux, for appellee.
This is an expropriation action by the Town of Golden Meadow, a municipality of the State of Louisiana. The property sought to be expropriated is part of a tract of land belonging to the defendant, Clovis Duet, and is to be used for the construction of a protection levee. An exception of no right of action was referred to the merits, answer filed, and after trial the exception was overruled and judgment rendered in favor of plaintiff, appellee, granting a right-of-way conditioned upon the payment of the sum of $952.25.
From this judgment the defendant-appellant has perfected a suspensive appeal, reurging the exception and, in the alternative, for an increase of the award to the amount of $12,500. The plaintiff-appellee has answered the appeal praying the judgment be reduced to the amount of $415.58.
On the Exception
The exception of no right of action is founded upon two premises:
(a) The property sought to be expropriated is located beyond the corporate limits of the Town of Golden Meadow.
(b) The Statute authorizing and requesting the Louisiana Department of Public Works to construct the levee fixes the location thereof as being in the rear of said town, whereas the property to be expropriated is located a distance above or north of said town.
(a)
[1, 2] Generally the powers of a municipality corporation do not extend beyond its corporate limits unless these powers be extended by the Legislature. See Koerber v. City of New Orleans, La. App., 76 So.2d 466, and authorities cited.
However, through Act 419, Section 1, of 1938 (now LSA-R.S. 33:4621), our Legislature broadened the powers of Municipal corporations as well as parishes. The pertinent Section of this Act reads as follows:
"§ 4621. Authority to acquire property. Municipalities and parishes may expropriate and otherwise acquire any private property, within or without their limits, for any of the purposes for which they are organized, and for any works that they are authorized to own or operate, or which they are authorized to lease or donate to the United States. This Part shall not be construed to confer authority upon a parish or municipality to expropriate property in any other parish without the consent of the police jury of the parish in which the property is situated."
The Town of Golden Meadow was incorporated under the provisions of Act 136 of 1898, known as the "Lawrason Act", and its amendments. The powers of such a municipal corporation are set forth in LSA-R.S. 33:361. The pertinent parts of this State read:
"§ 361. Powers enumerated — The municipal corporation shall have the power
"First — To sue and be sued.
"Second — To purchase, accept, receive by donation or otherwise, hold, and sell or otherwise dispose of movable and immovable property within or without the corporate limits, for parks, cemeteries, hospitals, school houses, houses of correction, waterworks, electric lights, sewers, and for all other municipal purposes.
"Third — To make all contracts and to do all other acts in relation to its property and concerns necessary to the exercise of its corporate or administrative powers. * * * "
Further, authority for the expropriation of lands by a town to build levees is found in LSA-R.S. 38:181:
"§ 181. Construction and maintenance of levees; expropriation of lands.
"Cities and towns incorporated under the laws of this state may build and maintain levees within the limits of the municipality, or in its immediate vicinity, for protection from overflow or from the high waters of streams affecting them and may expropriate any lands within or without the corporation necessary for construction of levees.
"The expropriation proceedings shall be upon due compensation and shall be conducted in accordance with and governed by the provisions of Articles 2626 to 2641 inclusive of the Revised Civil Code of Louisiana.
"The right of way over all lands of the state for these purposes is hereby granted when authorized by the governor."
From these statutes and the powers granted the Town of Golden Meadow it is clear that the contention of the defendant-appellant that the town has not the power to expropriate beyond its corporate limits is erroneous.
(b)
The pertinent part of the legislation authorizing the Department of Public Works to construct the levee in question here is found in Section 1 of Act 265 of the regular Session of 1956:
"Section 1. The Department of Public Works is hereby authorized and requested to build a protection levee in the rear of Golden Meadow in Lafourche Parish. The department shall expend the necessary funds for this purpose from the budget funds appropriated to it."
This Act merely authorized and requested the Department of Public Works to build the protection levee and really has nothing to do with the authority of the Town of Golden Meadow to expropriate property in connection therewith. To implement the building of the levee it was necessary for the town to acquire rights-of-ways from all of the landowners upon whose property the levee was to be constructed. The Town of Golden Meadow itself could have expropriated and built the levee, levying taxes for this purpose. The defendant-appellant contends that since Act 265 of 1956 states that the authority and request to the Department of Public Works is to build a levee in the rear of Golden Meadow the town had not the right to expropriate property north of the town. However, the petition states that the Department of Public Works had completed all of the surveys necessary to construct the levee and the property to be acquired is particularly described therein. It is also stated in the petition that the acquisition of the particular property is necessary and required for the purpose of the public interest, benefit and necessity. We cannot find any merit in the exception and the trial court was correct in overruling it.
On the Merits
The defendant-appellant claims that the plaintiff has not complied with the legal requirements for expropriation in that the necessity for the particular land was not shown. The evidence is clear that the proposed route for the protection levee was made according to the best engineering practices, and the testimony of Mr. William Hadden, an expert and area engineer for the Department of Public Works, shows the necessity for the acquisition of the particular property in question.
The map showing the proposed location of the levee construction was made under the supervision of Hadden and the map is signed by Mr. Morgan, the district engineer, and approved by Mr. Myers, chief engineer, and also by Mr. Wimberly, director. Hadden stated that the survey was made where the Department of Public Works, through its engineers, thought was the best location. He further testified that the location shown on the map was the first place outside of the corporate limits of the Town of Golden Meadow where a location was found which could be utilized as a stabilizer base.
There is nothing in the record to support the special defense urged by appellant.
Quantum:
The measure of compensation to be paid the landowner in such types of proceedings as we have here is the fair market value of the property expropriated.
In State, Through Dept. of Highways v. Hebert, 227 La. 111, 78 So.2d 528, 529, our Supreme Court so stated:
" * * * As a general rule, according to our established jurisprudence, 'the measure of compensation to be awarded in proceedings of this kind is the market value of the property — that is, the price which could be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy. And most important in determining the market value are sales of similar or comparable properties in the vicinity.' Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541, 542, and cases therein cited * * * ".
Also see City of Alexandria v. Jones, 236 La. 612, 108 So.2d 528 and Plaquemines Parish School Board v. La Grange Realty Co., Inc., La. App., 101 So.2d 634.
The petition alleges and the map attached thereto shows that the right of way in question is comprised of three different sections or parts which follow generally along a gravel road situated on the property of the landowner. The first section begins in the rear or western extremity of the property and proceeds in an easterly direction for about 1,900 feet ending at Point A-J on said map. This portion follows the meandering direction of the road and is 60 feet in width including the bed of the gravel road. This particular section of the right of way is low, saltwater marsh. The second section or part of the right of way is 30 feet in width and extends from Point B on said map to a point in the rear of buildings located on the property and marked D-H on the map. The third section is 15 feet in width including the road and extends from Point D-H to the highway that runs through the front part of the landowner's property. According to the petition the area comprising the front portion of the tract now being used as a private road comprises an area of 0.175 of an acre; the other portion along the roadway comprises an area of 0.217 of an acre; the remainder is in the rear or marsh portion of the land and comprises an area of 3.365 acres.
The plaintiff introduced an expert who testified that the marshy portion of the right of way was fairly valued at $50 per acre. His testimony included the results of an examination by him of acts of sales upon comparable properties. Another witness for the plaintiff testified as to the nature of this portion of the right of way, as did the Mayor of Golden Meadow, Mr. Alexie Plaisance. This last witness stated this particular portion of the land had little value at present and was flooded at times, had no value whatsoever as to revenues. The record as a whole indicates there have in the past several years been very few or any sales of this type of property. The evidence of the defendant-appellant offered upon the value of this tract was not such as to establish its market value as other than that shown by the plaintiff since the sales shown by the appellant were of property which was not marsh land. Consequently, as to this tract of 3.365 acres we are of the opinion that the evaluation of $50 per acre is correct.
The second portion of the right of way which covers that part of the landowners property from Point A-J to Point D-H on the map is not high land but could be utilized according to the evidence, without too much drainage. The expert witness of the plaintiff used comparable sales in arriving at a value of $333.33 per acre for this tract. The defendant offered no particular evidence as to the value of this portion of the property. However, it does form part of the "front" part of the property and is higher than the marsh property and could be utilized with practically little drainage. Due to the scarcity of high land in the vicinity of the defendant's land and the fact that all of the high land nearby is bordered by low marsh the value of any property which could be used is higher than the same type of property located elsewhere. For this reason we are of the opinion, from evidence in this record, as to sales of high land in the vicinity, that the valuation of $333.33 per acre is not a sufficient compensation to the defendant.
The third section of the right of way is truly "high lands" in the local expression and is very valuable due to its scarcity. The plaintiff-appellee does not deny this tract is worth much more than the other portions. The petition states the defendant was offered $1,000 per acre for this tract and its expert so evaluated this section. The acreage to be taken by this tract amounts to 0.175 of an acre. From sales in the relatively nearby sector we are of the opinion that the valuation awarded by the trial court of $2,000 per acre for the second and third tracts is not manifestly wrong.
There is some evidence that the defendant will receive some benefits from the construction of the work planned in that the remainder of his property will become more valuable as the levee will keep out the salt water and the marsh land behind it will finally become dry. The remainder of the property of the defendant will be within a drainage district and the present swamp and marsh comprising a portion of his tract will not become flooded but eventually can be utilized for residential property or the construction thereon of buildings. These special benefits offset any severance damages claimed by the defendant and for this reason we do not believe he is entitled to any severance damages. See Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654; State Through Dept. of Highways v. Central Realty Investment Co., 238 La. 965, 117 So.2d 261; and authorities therein cited.
The judgment of the District Court is affirmed at the cost of the defendant.